STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 93-5810

)

NICK JOSEPH SPINA, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Chipley, Florida, before David M. Maloney, Hearing Officer of the Division of Administrative Hearings, on April 25, 1994. Petitioner filed a proposed recommended order on May 19, 1994. The attached appendix addresses proposed findings of fact by number.

APPEARANCES

For Petitioner: Susan E. Lindgard, Senior Attorney

Department of Business and Professional Regulation

Suite 60, Northwood Centre 1940 North Monroe Street

Tallahassee, Florida 32399-0792 For Respondent: Pro Se

STATEMENT OF THE ISSUES

Has Respondent violated Section 484.056(1)(g), Florida Statutes as alleged in the Administrative Complaint? If so, what, if any, disciplinary action is appropriate?

PRELIMINARY STATEMENT

On August 19, 1993, the Department of Professional Regulation, (the "Department"), filed an Administrative Complaint against Nick Joseph Spina, Jr., ("Respondent" or "Mr. Spina.") The complaint alleges that Mr. Spina, while a licensed hearing aid specialist, committed acts which constitute grounds for disciplinary action under Section 484.056, a provision in Part II of Chapter 484, Florida Statutes, entitled "Fitting and Dispensing of Hearing Aids." The complaint cites specifically to subsection (1)(g) of Section 484.056 which authorizes disciplinary action for "[p]roof that the licensee is guilty of fraud or deceit or of negligence, incompetency, or misconduct in the practice of dispensing hearing aids," and alleges that Mr. Spina sold old, remade hearing aids as new hearing aids.

On September 27, 1993, Respondent requested a formal hearing. The hearing was held in Chipley, Florida, the location most convenient to Respondent because he now resides there.

The Department presented the testimony of Ralph Hadley, regarding the licensure of Respondent, and of Phil Duncan, as an expert witness.

Additionally, the Department offered five exhibits, all of which were admitted into evidence. At the Department's request, official recognition was taken of Chapter 484, Part II, Florida Statutes and Chapter 21JJ, Florida Administrative Code.

Respondent testified in his own behalf and offered one exhibit which was admitted into evidence.

FINDINGS OF FACT

1. In September of 1989, Mrs. Mary Louise Gibson, then in her late seventies, purchased "full-shell" Sonotone hearing aids at Hearing Aid Services in Temecula, California. The hearing aids were manufactured by TelStar Electronics, Inc., located in Longwood, Florida. The manufacturer's warranty covering the hearing aids expired on December 22, 1990.

   
   

2. Some time after the purchase of the hearing aids, members of Mrs. Gibson's family began to tell her that she was not hearing well despite use of the hearing aids. In August, 1991, some eight months or so after the warranty had expired, Mrs. Gibson, thinking the hearing aids were still under warranty, visited the TelStar manufacturing facility in Longwood to see what could be done about her poor "hearing aid-assisted" hearing. At the manufacturing facility, Mrs. Gibson was referred to the manufacturer's retail store in an adjoining part of the building housing the manufacturer's operation.

   
   

3. With Mrs. Gibson was her husband, who was also having trouble with his hearing aids, and her daughter, Mary A. Gibson. By virtue of the referral, the Gibsons and her husband went from the manufacturing end of the building to the manufacturer's retail store.

   
   

4. Working as a hearing aid specialist in the manufacturing facility's retail store was Respondent, Nick Joseph Spina. At the time of Mrs. Gibson's visit, Mr. Spina was licensed by the Board of Hearing Aid Specialists as a hearing aid specialist in the state of Florida. His license number is AS 0001750. Mr. Spina continues to be and has been at all times material to this proceeding the holder of the hearing aid specialist license.

   
   

5. Not a salaried employee of TelStar, Mr. Spina's pay at the TelStar retail store was based entirely on commissions from new sales. In any given sale, the commission was thirty per cent of the gross amount of the sale.

   
   

6. Mr. Spina conducted an audiogram of Mrs. Gibson. He concluded that Mrs. Gibson needed a type of shell for her hearing aids different from the style she had been using: a "full-shell," which occludes the ear canal entirely. In Mr. Spina's professional opinion, Mrs. Gibson needed a helix-type shell which fills only the top of the ear and leaves the ear canal unoccluded.

7. The Purchase Agreement executed by Mr. Gibson shows on the day the Gibsons consulted with Mr. Spina that Mrs. Gibson's husband, Horace Gibson, agreed to pay $450.00 for a recasing of Mrs. Gibson's hearing aids. The comments section of the order form states "Recased to helix aids," and shows a charge of $139.00.

   
   

8. On August 28, 1991, Mrs. Gibson picked up the recased hearing aids. The invoice of the same date shows that TelStar Electronics, Inc., charged

   $139.00 for the recasing. Mrs. Gibson, as was agreed under the terms of the Purchase Agreement, paid $450.00 for the recasing.

   
   

9. Approximately five months later, in January of 1992, Mrs. Gibson visited Mr. Spina again. Based on a second audiogram, Mr. Spina told her that she had experienced a dramatic change in her hearing since the August testing and needed another type of hearing aid. A purchase order form signed January 16, 1992, with an order date of January 13, 1992, shows that Mrs. Gibson agreed to pay $1078 for a hearing system described as "NEW" and being a Sonotone Model ITE, colored pink, with a warranty period from 1/16/92 to 1/16/94, a two-year warranty. The serial numbers for the new hearing aids are listed on the purchase agreements as 92F24064 for the hearing aid for the left ear and 92F24065 for the hearing aid for the right ear. The purchase order form is signed by Nick Spina.

   
   

10. On the same date the "new" hearing system was ordered, January 13, 1994, Mr. Spina executed a second form, a repair order form. The repair order form ordered that M. L. Gibson's hearing aids bearing serial numbers 91F13666 and 91F13665, the helix-type hearing aids provided her the previous August by Respondent, be remade as "full shell" hearing aids. The order form for the repair of the helix hearing aids shows that Respondent ordered them to be assigned new serial numbers identical to those listed on the purchase order form for the new hearing aids, 92F24064 for the left ear and 92F24065 for the right ear, and be shipped back on January 15, 1992. This same form shows that a 2 year warranty was to be added to the hearing aids for the repair.

    
    

11. An invoice dated January 15, 1994, shows a shipment by Sonotone Corporation, TelStar Division in Longwood, Florida, of Purchase Order number "Gibson TS R/M" of Order Number 60864, the order executed by Respondent on January 13, 1994. The hearing aids were remade to full shell hearing aids, reassigned the serial numbers ordered by respondent, and the circuit, microphone and receiver were changed. No charge was made for the remake of the helix hearing aids back into full shell hearing aids because the hearing aids were under warranty from the recasing accomplished the previous August. The remade hearing aids were not given an additional two-year warranty. It is not customary in the industry to give two-year warranties for remade hearing aids. A warranty for remade hearing aids is much less than two years, typically 6 months. Two-year warranties are reserved for new hearing aids.

    
    

12. Mrs. Gibson picked up the hearing aids and paid $1078 for them, believing them to be new hearing aids.

    
    

13. Mrs. Gibson's daughter, who accompanied her mother to all the transactions with Respondent, also was under the impression that brand new hearing aids had been provided her mother in January of 1992.

    
    

14. Less than two months later, on March 10, 1992, Mrs. Gibson consulted Freddi M. Catlett, of the Arkansas Hearing Aid Center in Hot Springs, Arkansas, because her hearing aids were rubbing her ear so as to make it sore.

15. Ms. Catlett sent impressions of Mrs. Gibson's ears as well as the hearing aids to the Sonotone factory in Florida. Instead of 92F24065, the serial number of Mrs. Gibson's right hearing aid, the order form lists the serial number of the hearing aids as 92-24065, substituting a "-" for the "F", the third digit in the serial number. Otherwise the number on the order form is identical to the serial number of the right hearing aid purchased by Mrs. Gibson in January of 1992 from Respondent. Both Mrs. Gibson and her daughter, despite the fact that Mrs. Gibson had two pairs of hearing aids, were sure that the hearing aids examined by Ms. Catlett were the "new" hearing aids purchased from Respondent in January of 1992.

    
    

16. The hearing aids were returned to Mrs. Catlett from the Sonotone factory with an invoice charging $74.50 for a replating and recasing of the hearing aids. The service department notes on the order form shows that the warranty on the hearing aids, which should have been good until January of 1994 had the hearing aids been new in January of 1992, had expired on January 28, 1992.

    
    

17. Upon being noticed that the warranty had expired, Ms. Catlett contacted Sonotone to inquire further. She was told that the hearing aids had been purchased in 1989 and that the warranty was no longer in effect. Ms. Catlett then questioned Mrs. Gibson and was assured that the hearing aids were the "new" hearing aids purchased from Respondent the previous January.

    
    

18. The hearing aids examined by Ms. Catlett were the hearing aids purchased in January of 1992 from Respondent. The serial number listed on Ms. Catlett's order form mistakenly listed "-" as the third digit instead of "F". Contrary to Mr. Spina's representation, the hearing aids he sold to Mrs. Gibson in January of 1992 were not new, despite his marking on the order form that they would have a two-year warranty. The hearing aids sold as new hearing aids by Respondent in January of 1992 were simply a remake of the helix-type hearing aids that Mr. Spina had remade the August before. These hearing aids were new in 1989 not in 1992.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over this proceeding. Section 120.57(1), Florida Statutes.

    
    

20. Among other disciplinary measures, the Board of Hearing Aid Specialists may revoke the license of a hearing aid specialist if the hearing aid is found guilty of any of the grounds listed in Section 484.056(1), Florida Statutes. Section 484.056(2)(a)2., F.S. In addition, for each count or separate offense of Section 484.056(1), Florida Statutes, the Board may impose a fine up to $1000. Section 484.056(2)(a)3., F.S.

    
    

21. Section 484.056(1), Florida Statutes, states:

    
    

    The following acts relating to the practice of dispensing hearing aids shall be grounds

    for both disciplinary action against a hearing aid specialist as set forth in this section . . .

    * * *

    (g) Proof that the licensee is guilty of fraud or deceit or of . . . misconduct in the practice of dispensing hearing aids.

22. License revocation proceedings, such as this one, are "penal" in nature. State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487,

491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980). Strict procedural protections apply in disciplinary proceedings, and the prosecuting agency's burden is to prove its case by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached. Respondent, by selling Mrs. Gibson hearing aids under the representation that they were new when they were not, and by charging her in excess of $1000 for the hearing aids which had been remade by the manufacturer at no charge, breached a clear duty to act in his practice without fraud and deceit. Respondent is guilty of fraud and deceit and has committed misconduct in the practice of dispensing hearing aids, acts listed in Section 484.056(1) (g), Florida Statutes as grounds for disciplinary action.

RECOMMENDATION

It is, accordingly, and in keeping with Section 484.056(1) and (2), Florida Statutes,

RECOMMENDED:

That Respondent Nick Joseph Spina's license to practice as a hearing aid specialist be revoked and that Nick Joseph Spina be fined $1000.

DONE and ENTERED this 18th day of August, 1994, in Tallahassee, Florida.

DAVID M. MALONEY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1994.

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

1. Findings of fact in Petitioner's Proposed Recommended Order 1, 3-19 are accepted.

2. Finding of fact #2 in Petitioner's Proposed Recommended Order is rejected to the extent it implies Mrs. Gibson was 83 in August of 1991. She was

83 at the time of her deposition in April of 1994. Otherwise the finding is accepted.

COPIES FURNISHED:

Susan E. Landward Senior Attorney

Department of Business and Professional Regulation

Suite 60, Northwood Centre 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Nick Joseph Spina, Jr.

P. O. Box 214 Chipley, FL 32428

Jack McRay General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Suzanne Lee Executive Director

Hearing Aid Specialists 1940 North Monroe Street Tallahassee, FL 32399-0759

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-005810

Orders for Case No: 93-005810